The U.S. Supreme Court Votes 5-4 To Broadens The Reach Of The Fair Housing Act

The Supreme Court by a 5-4 vote has not only affirmed the legitimacy of the Fair Housing Act passed in 1968 to combat housing discrimination but has broadened it reach by ruling that the law not only allows people to make claims for intentional discrimination but also claims that cover practices that have a discriminatory effect even if they were not motivated by an intent to discriminate.

Civil rights advocates had argued such “disparate impact” claims filed under the Fair Housing Act are essential to combat subtle instances of discrimination, but some companies, developers and housing authorities say they cost time and money investigating actions made with good intentions. Developers argue these claims force a state or private entity to engage in race-conscious decision-making to avoid legal liability.

The case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, began in 2008, when the Inclusive Communities Project, a non-profit organization that seeks to promote racial integration in Dallas, sued a state agency charged with allocating tax credits to developers who build low-income housing projects. The ICP accused the Texas agency of disproportionately allocating the tax credits to properties in minority populated areas.

Lower courts have ruled in favor of the ICP, and for years, other courts have allowed disparate impact claims to go forward. But critics say such claims have a negative impact on affordable housing.

Michael W. Skojec, a lawyer with Ballard Spahr who has filed a brief on behalf of the Houston Housing Authority in support of Texas was quoted on CNN saying, “Housing authorities and developers are not able to make the same kind of decisions to develop affordable housing if they have to consider the effects of where they are developing and how the money is invested in housing.”

Skojec says that whether housing is developed in poor neighborhoods or more affluent neighborhoods, developers could still be subject to claims of disparate impact based on statistics of how minorities are affected, “What we are trying to do is get people not to consider race, or think of people in racial terms. The disparate impact concept encourages and requires people to think about race in every decision.”

Texas’s solicitor general argued that the Fair Housing Act “unambiguously precludes” claims of disparate impact. He said that while the statute forbids actions that discriminate “because of race” the language of the law “cannot support an additional prohibition on actions that discriminate because of any factor that happens to be correlated with race.”

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